In equal pay fight, U.S. Women’s Soccer strike could hinge on a clause
By Roy Strom, From The National Law Journal
Whether the reigning women’s soccer world champions strike before the 2016 Summer Olympics could hinge on a rather simple contract dispute. Is there a clause in the collective bargaining agreement between the U.S. Soccer Federation and the U.S. Women’s National Soccer Team that bars the team from striking?
Stark disagreement on that question came to light Tuesday when the sides filed competing motions for summary judgment in federal court in Chicago in a lawsuit brought by the U.S. Soccer Federation.
The federation filed its lawsuit in February accusing the U.S. Women’s National Soccer Team Players Association of breaching a bargaining agreement by threatening to strike amidst a broader effort to secure wages more comparable to their male counterparts. The players’ union says it has the right to strike.
Both sides are seeking a summary judgment order from the court in one part of a multi-faceted battle over wages. The stakes are higher than just money: U.S. Soccer’s filing says a strike could ultimately force the women’s team to withdraw from the Olympics and also result in a suspension of all national soccer teams from other FIFA events.
Both sides are represented by attorneys and firms with plenty of big-stage sports litigation experience.
Winston & Strawn’s Jeffrey Kessler—who has represented unions in the four biggest American sports leagues and Tom Brady in “Deflategate”— represents the women’s national team. A team of litigators from Latham & Watkins, led by Matthew Walch in Chicago, are going to bat for the soccer federation. Latham has represented the NFL Players Association in a lawsuit that helped end the 2011 lockout.
In a separate case filed last month before the Equal Employment Opportunity Commission, five players from the women’s team accused the soccer federation of wage discrimination, saying the decorated women’s team members earn as little as 40 percent of the members on the men’s national team.
The lawsuit in Chicago’s federal court will mostly determine whether the women can use a strike as leverage to boost their pay.
Both sides agree the players were historically barred from initiating a strike due to a “no strike, no lockout” clause the parties say dates back to a 2005 bargaining agreement. The uncertainty surrounding the agreement—and the clause banning strikes—arose when the agreement expired at the end of 2012.
The soccer federation says a new agreement was entered into in March 2013 that included the clause on strikes. That agreement expires at the end of the year. The player’s association says that agreement was a “memorandum of understanding”—not necessarily a binding agreement—that didn’t include the clause.
The soccer federation asks the court to rule that the “no strike, no lockout” clause is enforceable and that the players “anticipatorily breached” the agreement by denying its existence and threatening to strike. The players ask the court to rule that the “no strike” clause does not exist.
In an interview, Kessler said the lawsuit will establish the women’s right to strike. In the broader effort to increase the women’s team’s pay, he said he believed the case before the employment regulator would result in a favorable ruling for the team – unless a new agreement was negotiated beforehand.
“The obligation to pay equal pay for equal work exists whether or not there’s a union, whether or not there’s a collective bargaining agreement and whether or not there’s a strike,” Kessler said.
Attorneys from Latham & Watkins did not respond to a request for comment Wednesday.
Kessler declined to comment on the soccer federation’s claim that a strike could result in a withdrawal from the Olympics, which start on August 3, or other suspensions for U.S. Soccer teams. He said the players “have been pressing to meet” to negotiate a new collective bargaining agreement that could resolve these disputes but that no talks were scheduled for April.
“This apparently is not all that important to” the U.S. Soccer Federation, Kessler said.
The U.S. Soccer Federation did not return a phone call seeking comment on the negotiations Wednesday.
In previous months, the federation has said that it’s “committed to and engaged in” negotiating a new agreement to take effect when the current one expires at the end of the year, according to a release by the organization when the players filed their EEOC action. The release said U.S. Soccer would continue to advocate for the women’s game, including attempting to influence FIFA’s compensation model.
IMAGE: U.S. women’s national soccer team forward Crystal Dunn (16) passes the ball during a game against the Colombian women’s national soccer team at Talen Energy Stadium in Chester, Pa., on April 10, 2016. Photo by Dennis Schneidler/Icon Sportswire via AP Images
